Supreme Court keeps Trump-era migrant ban in place for now

Title 42 will remain in force until the Supreme Court considers the case in February

Andrew Feinberg,Graeme Massie
Tuesday 27 December 2022 23:32 GMT

Related video: White House to continue Title 42 at US-Mexico border

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The US Supreme Court will permit a Trump-era order barring most migrants from claiming asylum after crossing the US-Mexico border to remain in force while it considers arguments over whether a group of Republican-led states will be able to argue on behalf of the policy.

Chief Justice John Roberts, Trump-appointed justices Amy Coney Barrett and Brett Kavanaugh, and GOP-appointed justices Samuel Alito and Clarence Thomas voted to grant a request by the states, led by Arizona, to hear the case, which is an appeal of a US Court of Appeals for the District of Columbia Circuit ruling denying the states’ request to intervene in order to overturn a District of Columbia-based federal judge’s order overturning the policy, known as Title 42.

The district court had found the 2020 order blocking most migration along the US-Mexico border had been arbitrary and capricious and ordered the federal government to stop expelling asylum seekers under the Trump-era policy. The Republican-led states are seeking to keep the Title 42 order — issued by the Centers for Disease Control as part of an emergency decree on grounds that migrants could bring Covid-19 into the US — in place because it allows the government to expel the vast majority of migrants without having to hear their asylum claims.

In an unsigned order, the five-justice majority said the order vacating the Title 42 order will remain stayed until at least February 2023, when the government and the GOP-led states will argue whether the states can intervene in favour of the Trump-era policy against the federal government.

“This stay precludes giving effect to the District Court or- der setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy,” the court said.

In a separate opinion dissenting from the majority, Trump-appointee Justice Neil Gorsuch — joined by the court’s newest member, Justice Ketanji Brown Jackson — wrote that he believes the majority’s decision to be “unwise”.

“Reasonable minds can disagree about the merits of the D. C. Circuit’s intervention ruling. But that case-specific decision is not of special importance in its own right and would not normally warrant expedited review,” he wrote. He added that it is “unclear” what the court “might accomplish” with respect to the merits of the Title 42 order itself because the emergency order on which it was based has been lapsed for some time.

“The States may question whether the government followed the right admin- istrative steps before issuing this decision ... But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life,” he wrote.

He noted that the “only plausible reason” that the majority has decided to step in that he can discern is to mitigate the immigration crisis currently unfolding at the border, where thousands of migrants are expected to cross into the US when the Title 42 order expires.

“Courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort,” he said.

In response to the ruling, White House press secretary Karine Jean-Pierre said that the Biden administration would “comply with the order and prepare for the Court’s review.”

And she added: “We are advancing our preparations to manage the border in a secure, orderly and human way when Title 42 eventually lifts.”

Title 24 is part of the Public Health Service Act of 1944 and gives federal authorities the power to deny entry of people and products into the US to limit the spread of communicable diseases.

Title 42 has expelled around 2.5 million people without a chance to seek asylum since Donald Trump implemented it in March 2020 in the early days of the Covid pandemic.

According to The New York Times, Stephen Miller, a senior adviser to Mr Trump in the White House, had pushed him to invoke Title 24 at the US-Mexico border as far back as 2018, before Covid emerged in China.

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